3.2 Harassment, Bullying at Work and Grievances

RELEVANT GUIDANCE/DOCUMENTS

Clifford House follow the guidance given in the A.C.A.S handbook. See acas website

Introduction and Summary
Meaning of Harassment
Preventative Measures
Informal Remedy
Sexual or Racial Harassment
Legal Framework

1. Introduction and Summary

Everyone should be treated with dignity and respect at work.

Bullying and harassment of any kind are in no-one's interest and is not to be tolerated in the workplace.

Employees are expected to behave in a non-racist, non-sexist and non-discriminatory manner towards both the public and fellow staff. Employees have the right to be treated with consideration, dignity and respect and to work in an environment free from any form of intimidation. Clifford House will not tolerate any form of sexual, racial or disability discrimination harassment. Such behaviour is unacceptable and unlawful and may be treated as Gross Misconduct.

This document deals with complaints of harassment, informs employees of the type of behaviour that is unacceptable and provides victims of sexual, racial harassment or disability discrimination with a means of redress. It is the duty of the Managers to implement this policy and all employees are expected to comply. Therefore Clifford House undertakes to provide appropriate training and guidance for staff to emphasise the serious approach it takes towards matters of discrimination and harassment.

2. Meaning of Harassment

Harassment, in general terms, is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, sexual orientation, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient

Harassment can reduce the Organisation's performance by undermining the confidence of those affected, creating a threatening environment, and increasing absence due to sickness and staff turnover.

Harassment is unjustified, unwanted, unreasonable or inappropriate treatment of, or behaviour towards, another person which causes them distress, discomfort, worry or humiliation.

Harassment is defined by the person or people who are subjected to it. Both men and women can be guilty of sexual harassment and people of any race can be guilty of racial harassment.

Examples and definitions of what may be considered bullying and harassment are provided. For practical purposes those making a complaint usually define what they mean by bullying or harassment - something has happened to them that is unwelcome, unwarranted and causes a detrimental effect. If employees complain they are being bullied or harassed, then they have a grievance which must be dealt with regardless of whether or not their complaint accords with a standard definition.

2.1 Is sexual harassment different?

Sexual harassment is one of the most common forms of harassment and is specifically outlawed by the Sex Discrimination Act (as amended October 2005).

It is in the interest of the organisation that we take steps to make clear what sort of behaviour would be considered sexual harassment.

2.2 How can bullying and harassment be recognised?

There are many definitions of bullying and harassment. Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.

2.3 Examples of Harassment

Behaviour that is considered bullying by one person may be considered firm management by another. Most people will agree on extreme cases of bullying and harassment but it is sometimes the 'grey' areas that cause most problems. It is good practice for Clifford House to give examples of what is unacceptable behaviour in there organisation and this may include:

spreading malicious rumours, or insulting someone (particularly on the grounds of age, race, sex, disability, sexual orientation and religion or belief)
copying memos that are critical about someone to others who do not need to know
ridiculing or demeaning someone - picking on them or setting them up to fail
exclusion or victimisation
unfair treatment
overbearing supervision or other misuse of power or position
unwelcome sexual advances - touching, standing too close, display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected
making threats or comments about job security without foundation
deliberately undermining a competent worker by overloading and constant criticism
preventing individuals progressing by intentionally blocking promotion or training opportunities.

Bullying and harassment are not necessarily face to face, they may be by written communications, visual images (for example pictures of a sexual nature or embarrassing photographs of colleagues), electronic (e)mail (so called 'flame-mail'), phone, and automatic supervision methods - such as computer recording of downtime from work, or recording of telephone conversations - if these are not universally applied to all workers.

Bullying and harassment can often be hard to recognise - they may not be obvious to others, and may be insidious. The recipient may think 'perhaps this is normal behaviour in this organisation'. They may be anxious that others will consider them weak, or not up to the job, if they find the actions of others intimidating. They may be accused of 'overreacting', and worry that they won't be believed if they do report incidents.

People being bullied or harassed may sometimes appear to overreact to something that seems relatively trivial but which may be the 'last straw' following a series of incidents. There is often fear of retribution if they do make a complaint. Colleagues may be reluctant to come forward as witnesses, as they too may fear the consequences for themselves. They may be so relieved not to be the subject of the bully themselves that they collude with the bully as a way of avoiding attention.

2.4 Harassment may occur deliberately or accidentally.

It occurs because those responsible wish to embarrass, disempower or intimidate others, or because they do not realise that their behaviour will have this effect.

Harassment can be associated with position: typically a more senior person harassing a subordinate. In some cases harassment is used as a form of threat or inducement to a subordinate. The Organisation views such cases particularly seriously.

In any case of harassment, those responsible show a basic lack of respect for their team members or colleagues.

2.5 Forms of Harassment

Harassment can take many forms, physical, verbal and non verbal. Some examples follow:

Physical harassment: can include touching, petting, hugging, kissing, simply standing too close to another person, or in more serious cases any form of violence.
Verbal harassment: includes threats, insults, sexually explicit or racist jokes or teasing, invitations for dates or sexual activity, suggestive or derogatory comments about appearance.
Non-verbal harassment: includes wolf whistles, suggestive gestures, the display of offensive material (e.g. pin-ups or racist publications).

These examples are not exhaustive. As indicated above, the courts accept that it is the person subject to the actions who determines whether or not it is harassment.

2.6 The Effects of Harassment

Bullying and harassment are not only unacceptable on moral grounds but may, if unchecked or badly handled, create serious problems for an organisation including:

poor morale and poor employee relations
loss of respect for managers and supervisors
poor performance
lost productivity
absence
resignations
damage to company reputation
tribunal and other court cases and payment of unlimited compensation.

It is in every employers interests to promote a safe, healthy and fair environment in which people can work. The 1991 European Commission code 'Protection of Dignity of Men and Women at Work', highlights the need for employers to develop and implement coherent policies to prevent harassment. In addition, various laws place responsibilities on employers to protect employees and these are outlined below.

Harassment can cause the obvious effects, such as embarrassment, offence and humiliation. The effects are often however far more insidious since they can affect the behaviour of the person harassed.

3. Preventative Measures

Clifford House is committed to creating a working environment where there are no incidents of harassment. Such situations can be avoided by:

Training and Education

All new employees will be informed of the policy towards sexual and racial harassment at induction when it will be stressed that all complaints of sexual and racial harassment will be treated very seriously. Also seminars for staff and managers will be provided on Harassment in the Workplace.
Removal of Offensive Material

Clifford House prohibits the display of offensive material e.g. pin-ups and posters and will, if necessary, ensure that working areas are inspected and the offending material removed.
Creating the Right Atmosphere

Clifford House recognises the sensitive nature of complaints of harassment and that individuals may feel embarrassed or afraid to make a complaint. All complaints will be taken seriously and dealt with promptly and responsibly.
Disciplinary Action and referral to the General Social Care Council

Please read in conjunction with Chapter 3.10, Section 10: Disciplinary Procedures and with Section 6, Legal Framework.

Clifford House expects all Managers to ensure that this Policy and Procedure is adhered to at all times. Should they fail to act appropriately following a complaint of harassment they will be subject to disciplinary action as well as the alleged perpetrators.

Staff who are registered with the General Social Care Council who breach the Code of Conduct will be reported to the General Council, who may conduct an investigation and take action against workers; in serious cases, this can lead to workers being deregistered.

The Organisation ensures that in all instances the following is taken into consideration:

statement of commitment from senior management
acknowledgement that bullying and harassment are problems for the organisation
clear statement that bullying and harassment is unlawful, will not be tolerated and that decisions should not be taken on the basis of whether someone submitted to or rejected a particular instance of harassment
examples of unacceptable behaviour
statement that bullying and harassment may be treated as disciplinary offences
the steps the organisation takes to prevent bullying and harassment
responsibilities of supervisors and managers
confidentiality for any complainant
reference to grievance procedures (formal and informal), including timescales for action
investigation procedures, including timescales for action
reference to disciplinary procedures, including timescales for action counselling and support availability
training for managers
protection from victimisation
how the policy is to be implemented, reviewed and monitored.

4. Informal Remedy

In some cases it may be possible to rectify matters informally. Sometimes people are not aware that their behaviour is unwelcome and an informal discussion can lead to greater understanding and an agreement that the behaviour will cease. It may be that the individual will choose to do this themselves, or they may need support from personnel, a manager, an employee representative, or a counsellor.

Where both parties agree, mediation can be a useful and informal way to resolve complaints of bullying and harassment.

5. Sexual or Racial Harassment

Staff can also initiate Grievance, Complaints or Child Protection investigations if they appear to be more appropriate.

Staff may also contact the Regulatory Authority for advice or to make a complaint.

5.1 Initiating the Complaint

Where informal methods fail, or serious harassment occurs, the matter should be passed to the Group Manager of the resource where the member of staff is placed if they themselves are not implicated. Following this to an Assistant Director or Director, if either of these individuals are involved then the 'Whistle Blowing' procedure should be used.

The complaint may initially be made orally but should be confirmed in writing. Employees are advised to seek assistance from their immediate Manager (Team Leader if not involved ) about the complaint. It should state (where possible) the following:

The name of the harasser
The nature or type of harassment with details of what has happened
Dates and times when the harassment has occurred
Names of witnesses to any incidents of harassment
Any action already taken by the complainant to stop the harassment

5.2 Action on Receipt of Complaint

Immediately a complaint has been received, action will be taken to separate the alleged harasser from the complainant. The accused may be temporarily transferred or suspended with pay until the complaint has been resolved. Alternatively, should the victim prefer, his or her own transfer can be arranged.

5.3 Withdrawing a Complaint

Where a complainant does not wish to proceed with the complaint, he or she may discontinue at any time.

5.4 Investigating the Complaint

The investigation will be carried out as quickly as possible, maintaining the highest degree of confidentiality possible in the circumstances. All employees involved in the investigation are expected to respect the need for confidentiality. Failure to do so will be considered a disciplinary offence.

5.5 Disciplinary Panel

If the investigation indicates that harassment may have taken place, a panel will be convened and the matter will be heard in accordance with the Disciplinary Procedures.

5.6 Witnesses

Prior to the hearing copies of statements made by witnesses will be made available to the complainant and, except in exceptional circumstances, the alleged harasser. Witnesses will be encouraged to appear at the complaint hearing if requested by either party. It is acknowledged that some witnesses may be reluctant to do so. In these circumstances the hearing may be adjourned, if necessary, with the agreements of both sides, in order for the panel to hear the evidence of the witnesses in private.

5.7 Rights of the Complainant and the Accused

The complainant may, if he/she wishes, be supported throughout the procedure and hearing by his/her independent representative. Alternatively, the complainant may be represented by his/her Manager or a colleague of his/her choice. The accused will have the right to be accompanied/represented at the hearing and given every opportunity to defend his/her actions in accordance with the Disciplinary Procedures.

5.8 Disciplinary Penalties

The severity of the penalty imposed upon an employee found guilty of harassment will be consistent with those outlined in the Disciplinary Procedure i.e. gross sexual harassment will normally result in summary dismissal. Where a lesser penalty is appropriate i.e. a written warning, action will also be taken to ensure that the victim is able to continue working without embarrassment or anxiety.

However, it is acknowledged that in some cases it is practically impossible to separate the parties without causing severe disruption to the Organisation. The disciplinary panel is therefore required to take account of potential difficulties when considering the penalty so as to ensure the action taken is in accordance with the victim's wishes and interests. This may result in the dismissal of the harasser when otherwise this would not occur.

5.9 Right of Appeal

Accused:

An employee who receives a warning or is dismissed for sexual or racial harassment may appeal against the penalty.

Complainant:

The complainant may also appeal against the finding or any penalty. Requests for reconsideration of the complaint should be made within 21 working days of the first hearing.

5.10 General Advice

Employees who complain of sexual or racial harassment will not suffer victimisation for having brought the complaint to attention, nor will it appear on their personal records. However, if the complaint is found to be false and there is good reason to believe that is has been brought in bad faith, disciplinary action may be taken by the panel against the complainant.

6. Legal Framework

It is not possible to make a direct complaint to an employment tribunal about bullying. However, employees might be able to bring complaints under laws covering discrimination and harassment. For example:

sex: the Sex Discrimination Act gives protection against discrimination, harassment and victimisation on the grounds of sex, marriage, pregnancy, maternity leave or because someone intends to undergo, is undergoing or has undergone gender reassignment
sexual harassment: the Sex Discrimination Act also gives protection against unwanted verbal, non-verbal, visual or physical conduct of a sexual nature which is offensive, humiliating or degrading. This covers "one-off" episodes as well as repeated behaviour
race: the Race Relations Act 1976 gives protection against discrimination and victimisation on the grounds of colour or nationality. The regulations that amended the Act (Race Regulations) also give a stand alone right to protection from harassment on grounds of race and ethnic or national origin
disability: the Disability Discrimination Act 1995 gives protection against discrimination, harassment and victimisation
sexual orientation: the Employment Equality (Sexual Orientation)Regulations 2003 give protection against discrimination, harassment and victimisation on the grounds of sexual orientation (orientation is defined as 'same sex' - lesbian/gay - 'opposite sex' - heterosexual - and 'both sexes' - bisexual)
religion or belief: the Employment Equality (Religion or Belief) Regulations 2003 give protection against discrimination, harassment and victimisation on the grounds of religion or belief.

Briefly, a disciplinary procedure should:

Meet the minimum statutory procedure introduced on 1st October 2004;
provide for matters to be dealt with quickly;
ensure that individuals are made fully aware of what their disciplinary offence is;
state the type of disciplinary action and who can take it;
provide for a full investigation which gives individuals an opportunity to state their case;
allow individuals to be accompanied by an employee representative or a colleague;
not permit dismissal for a first offence (except for gross misconduct);
ensure an explanation is given for disciplinary action;
specify an appeals procedure.

In cases which appear to involve serious misconduct, and there is reason to separate the parties, a short period of suspension of the alleged bully/ harasser may need to be considered while the case is being investigated. This should be with pay unless the contract of employment provides for suspension without pay in such circumstances. A suspension without pay, or any long suspension with pay, should be exceptional as these in themselves may amount to disciplinary penalties. Do not transfer the person making the complaint unless they ask for such a move.

There may be cases where somebody makes an unfounded allegation of bullying and/or harassment for malicious reasons. These cases should also be investigated and dealt with fairly and objectively under the disciplinary procedure.

The Employment Act 2002 introduced standard internal systems for dealing with dismissal, and discipline and grievance issues. These systems require employers and employees to follow a minimum 'three-step' procedure - involving a statement (setting out in writing the grounds for action or grievance), a meeting between the parties and the right to appeal. The new provisions apply to all employers, no matter how many employees they have. For more information see the Acas Handbook 'Discipline and grievances at work' or call the Acas helpline for confidential advice on 08457 47 47 47.

What should be considered before imposing a penalty?

The action to be taken must be reasonable in the light of the facts. In some cases it may be concluded that a penalty is unnecessary or that counselling or training is preferable - the individual may now be more able to accept the need to change their behaviour. Where a penalty is to be imposed, all the circumstances should be considered, including: the employee's disciplinary and general record; whether the procedure points to the likely penalty; action taken in previous cases; any explanations and circumstances to be considered and whether the penalty is reasonable.

Written warnings, suspension or transfer of the bully/harasser are examples of disciplinary penalties that might be imposed in a proven case. Suspension or transfer (unless provided for in the employee's contract or agreed by the employee), could breach the employee's contract if they suffer a detriment by it, for instance a transfer to a different location which means additional expense or a less responsible job. Any such breach could lead to a claim of constructive dismissal by the affected employee.

Where bullying or harassment amounts to gross misconduct, dismissal without notice may be appropriate.

Whenever a case of bullying or harassment arises, employers should take the opportunity to examine policies, procedures and working methods to see if they can be improved - the advice given earlier in this leaflet may be helpful.

All employers contemplating dismissal - or action short of dismissal such as loss of seniority or pay - must, as a minimum, follow the three-step statutory procedure.

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